The opinion of the court was delivered by: Judge Caputo
On February 2, 2010, Plaintiff Ronald L. Tsosie, a federal prisoner incarcerated at the Canaan United States Penitentiary (USP-Canaan), in Waymart, Pennsylvania, filed this Bivens*fn1 action pursuant to 28 U.S.C. § 1331. Named as Defendants are the following Bureau of Prisons (BOP) employees: BOP Northeast Regional Counsel Henry Sadowski; BOP Northeast Regional Director J. L. Norwood; BOP Director Harley Lappin; Warden Ronnie Holt; Lieutenant (Lt.) Herbert Ousley; Lt. Richard Brassard; Senior Officer Christopher Heenan; Senior Officer Specialist Shanyn Shanley; Senior Officer Ryan Rosencrance; Senior Officer Michael Moran; Senior Officer Joseph Voda; Corrections Officer (CO) Stuffle, and Senior Officer Donovan Provost.
Mr. Tsosie filed this action after he was placed in a Special Housing Unit (SHU) cell with a non-functioning toilet for three days in October 2009. See Doc. 13, Am. Compl. He also claims that "the administration deliberately erase[d] all of [his approved telephone] phone numbers," which resulted in his lost opportunity to speak with his father before he passed. Id. Mr. Tsosie alleges that the Defendants took these actions in retaliation for his involvement in a May 2009 incident where another inmate was assaulted, and a staff member was injured.
Presently before the Court is the Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment. Doc. 42. Mr. Tsosie has filed a response to the motion, and Defendants have filed a reply brief. Thus, the motion is ripe for disposition. For the reasons set forth below, the Defendants' motion for summary judgment will be granted.
A. Mr. Tsosie's New Criminal Charge Stemming from Assault in May 2009.
On May 17, 2009, while incarcerated at USP-Canaan, Mr. Tsosie and two other inmates assaulted another inmate. See Doc. 48, Defs.' Statement of Material Facts (DSMF) at ¶2; Doc. 59, Pl.'s Statement of Material Facts (PSMF) at pp 83-96,*fn2
¶2. The inmate victim was assaulted with a lock tied to a sheet or belt. DSMF at ¶2; PSMF at ¶3. When staff arrived at the scene of the assault, Mr. Tsosie and the others did not initially heed the officers' orders to get to the ground. DSMF ¶¶4-5; PSMF ¶¶4-5. Eventually, Mr. Tsosie and the other assailants were handcuffed. DSMF ¶6; PSMF ¶6. Mr. Tsosie, and the other aggressors were criminally charged with conspiracy to assault; assault with a dangerous weapon; and assaulting/resisting/impeding officers/employees, and traffic in contraband articles. DSMF ¶5; PSMF ¶5. On March 16, 2010, Mr. Tsosie pled guilty to assault with a dangerous weapon and was sentenced to 33 months imprisonment, to run consecutive to his previously imposed sentence. DSMF ¶9; PSMF ¶¶9-10. All other charges were dismissed.
B. Three Days in SHU Cell with Malfunctioning Toilet.
Mr. Tsosie is a Native American. Doc. 13, Am. Compl. at p. 3. On Friday, October 23, 2009, between 12:30 p.m. and 2:00 p.m., Mr. Tsosie returned from the Lackawanna County Prison to USP-Canaan. Id.; DSMF ¶10. Plaintiff alleges that Officers Heenan, Rosencrance and Moran knowingly placed him and another inmate in a SHU cell with a toilet they could not flush. DSMF ¶11. However, corrections officers were able to remotely flush the toilet from outside of the cell.
DSMF ¶12. At least once during his shift that day, Officer Heenan flushed the toilet in Mr. Tsosie's cell. PSMF ¶19.
On the next shift, between 2 p.m. and 10 p.m., Officer Provost "was the head officer for the SHU." Doc. 13 at p. 5; PSMF ¶22. Mr. Tsosie sent an inmate request slip to him about the broken toilet, but he "ignored the request". Doc. 13 at p. 7; PSMR 22; DSMF ¶ 15. Later that night, when Lt. Ousley made his rounds on the SHU and learned of the malfunctioning toilet, he told Mr. Tsosie "he would look into another cell" for him. DSMF ¶14; PSMF ¶23.
Plaintiff asked Officers Voda and Stuffle to manually flush the toilet but they "deliberately walked by as not hearing plaintiff." DSMF ¶16. Officer Stuffle is alleged to have turned the water completely off after getting upset with Plaintiff's constant requests to flush his toilet. Doc. 13 at p. 7. Mr. Tsosie affirms that Officer Voda finally flushed the toilet, but only after the smell of feces emanated from the cell. Doc. 13 at p. 13; PSMF ¶28; DSMF ¶18.
The next day, Saturday, October 24, 2009, Mr. Tsosie spoke again to Lt. Ousley about the broken toilet and asked to be moved to a different cell. DSMF ¶17; Doc. 13 at p. 5. He was not moved.
On Sunday, October 25, 2009, Officer Shanley was the officer in charge of the SHU. Mr. Tsosie sent an inmate request slip to her about his housing problems, but the request went unanswered. PSMF ¶32. Around 5:00 p.m. or 6:00 p.m., Plaintiff complained about the broken toilet to Lt. Brassard but was told nothing could be done until Monday when maintenance staff returned. DSMF ¶¶20-21; Doc. 13 at p. 5; PSMF ¶33. The toilet was flushed once by Officer Brandenburg the evening of October 25, 2009. PSMF ¶34.
On Monday, October 26, 2009, around 4:00 p.m., Mr. Tsosie spoke to Officer Shanley then moved Mr. Tsosie and his cellmate to another cell in the SHU "that was open all this time." Doc. 13 at p.7; DSMF ¶¶ 22-23; PSMF ¶35 and ¶ 37.
Officer Moran declares that he worked the 6:00 a.m. to 2:00 p.m. shift at USP-Canaan on October 23 through 26, 2009. DSMF ¶29. On October 23, 2009, Officer Stuffle worked overtime on a medical trip escort and was not in the SHU at any time that day. DSMF ¶¶31-32. Officer Stuffle, however, did work the afternoon/evening shift in the SHU on October 24 and 25, 2009. DSMF ¶33. He recalls the SHU was full of inmates on those dates and denies shutting the water to Mr. Tsosie's cell off at any time. DSMF ¶¶35-36.
C. Erasure of Mr. Tsosie's Telephone Numbers.
Mr. Tsosie alleges that "[t]he administration deliberately erased all my phone numbers sometime between 10/7 and 10/13 before [he] went to Court ... [he] did not get his phone numbers put back until January." Doc. 13 at p. 8; DSMF ¶26. As a result, he did not learn of his father's passing and lost the opportunity to speak with him one last time before he died. Doc. 13 at p. 8; DSMF ¶27.
D. Mr. Tsosie's Exhaustion of Administrative Remedies.
On November 22, 2009, Mr. Tsosie attempted to informally resolve the issue related to his SHU placement in a cell with a broken toilet for three days. Doc. 47-4 at pp. 70-71. Mr. Tsosie's counselor advised him that his allegations "are taken seriously and will be given an appropriate amount of review and/or investigation . . . we are unable to disclose to you any findings or result of our review in this matter." Id. at 72. Plaintiff then filed a formal administrative remedy with Warden Holt on November 30, 2009, complaining of being placed in a cell with a non-flushing toilet as well as the erasure of his phone numbers. Id. at p. 68, Admin. Remedy No. 568524-F1; DSMF at ¶50. Warden Holt responded to the grievance on December 22, 2009. Id. at p. 58 and p. 69. Mr. Tsosie was advised that if he was dissatisfied with Warden Holt's response he could file an appeal with the Regional Director. Id. Mr. Tsosie's appeal to the Regional Director was received on January 13, 2010, and ...